Hanging All the Lawyers

And so now the talk radio revolutionaries, having flashed their sabers at welfare mothers and Mr. Rogers, gallop off to battle the legal profession. First, let’s hang all the tort lawyers, they cry, quoting Shakespeare out of context. No more silly lawsuits over botched operations or killer toys or scalding coffee. Let freedom and cash registers ring--and let the buyer beware.

David Harney has heard all this before. Harney is a lawyer, and for that he makes no apologies. For 40 years, the Los Angeles attorney has engaged in the business of suing sloppy manufacturers and errant doctors. He was on to the Corvair before Ralph Nader. He pioneered the medical malpractice lawsuit and wrote the standard law school text on the subject. And 20 years ago, when the insurance industry and its allies journeyed to Sacramento to, er, invest in “tort reform,” the legislation they commissioned was called the “anti-Harney bill.”

Now a national version of the anti-Harney law has been proposed. The package of anti-litigation measures--severe caps on damages and so forth--easily passed the House. It was less well-received in the Senate, however, and so the cheerleaders are working the airwaves, trying to make tort reform, laughably, a populist issue.

Put your trust, the People (capital P) are counseled, in good old American fair play. All doctors are Marcus Welby--skilled, capable, just like Dad. The insurance industry is your good neighbor, with good hands. Forget the bottom line; Corporate America worries most about you. And Ford has a better idea, the Pinto notwithstanding, and McDonald’s is your kind of place, just don’t spill the coffee. And so who needs lawyers?

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Harney, of course, does not buy it. After 400 cases, the 70-year-old attorney has seen too much. He is a soft-spoken man, equipped with a sour wit, a powerful memory and theatrically bushy eyebrows that, when arched, serve as exclamation points. He sits in a Downtown restaurant and tells a few stories.

There was an insurance broker from Long Beach who needed a cancerous right kidney removed. “That’s r-i-g-h-t,” Harney says, spelling it out, as he did for the jury. The surgeons removed the good left kidney. “They said, ‘Well, it’s just one of those things.’ He would die and that would be the end of it. He fooled them. He survived and sued.” When Harney summed up the case for the jury, he wore on his coat lapels two buttons--an ‘L’ button on the left side, an ‘R’ on the right side.

There was a kid who crashed his father’s Lincoln in the Hollywood Hills. The brakes had failed. The young man was left brain-damaged. “His father was a vice president for an insurance company,” Harney remembers, lifting one of his bushy eyebrows. “Which is interesting.” The family sued. In trial, Harney proved that the model’s decorative hubcaps caused the brake failure. There had been similar accidents before, but, hey, those caps looked sharp.

And there was the case that started it all, the first medical malpractice lawsuit for both Harney and L.A. County. A baby was sent home sick from the hospital. “The baby was black,” Harney says, “which is interesting.” The family tried to readmit the baby. The hospital balked. First a medical student examined the newborn, then a nurse. After a few hours, it was determined that the father, a jailhouse cook, lacked the required $100 cash deposit. The baby died en route to another hospital. At trial, the hospital’s expert testified at length how the baby would have died anyway. Harney asked him only one question:

“Are you God?”

The doctor hesitated, and in that moment the hospital had lost the case.

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The point of these stories is quite simple: To paraphrase the bumper sticker, stuff happens. When it does, most people aren’t content to grin and bear it. They don’t find radio talk show hosts or Republican governors at their doorstep, offering to bail them out. So they go looking for a lawyer like Harney, who believes that, under law, “for every wrong, there is a remedy. I am supposed to be the remedy. It is that simple.”

Unfortunately, since the anti-Harney legislation, he turns away roughly 99 of every 100 victims who come his way. For most, the damage caps make any lawsuit a waste of Harney’s time and their own. Even those few who eventually win big awards later see them reduced severely, and with little public notice, by the courts.

And now a final point. On occasion doctors have come to Harney, seeking to file malpractice claims against their own physicians. “When doctors themselves are victims,” he says, “they tend to develop a different attitude toward tort reform.” Which is interesting.